Mark Tushnet, The Politics of Constitution-Making, in Elgar Handbook on the Politics of Constitutional Law (Mark Tushnet & Dimitry Kochenov eds., forthcoming 2022).
Abstract: At the most general descriptive level constitution-making processes can be understood as bargains struck among groups each of which sees advantages in establishing a (temporarily) stable governing order. This essay, a contribution to a handbook on the politics of constitutional law, seeks to identify some more granular processes. Section 1 describes three prominent approaches to theorizing about the politics of constitution-making Ackerman’s theory of “constitutional moments”; Elster’s identification of “upstream” and “downstream” constraints on constitution-making; and studies of post-conflict, post-crisis, and “imposed” constitution making, with a brief discussion of constitution-making in “normal” times. Section 3 offers a sequential account of the politics of constitution-making, beginning with the proposal stage, then turning to the selection of the process by which the constitution will be made before addressing some specific issues associated with constitution-making by constituent assemblies. A discussion of the politics of the drafting process follows, after which the essay considers the politics of adoption/ratification or rejection. The discussion concludes with what some have identified as the “afterlife” of constitutional processes that do not produce a new ratified constitution.